Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1887-05-05
court deuy's this right to us. they deny us

4 court deny's this right to us, they deny us
the right granted In the constitution.
Mr.Nielda replied TO the last two speakers
forcibly and with telling sentences. Hesaid
that liberal constructions should be and
always have been given. The Legislature
has acted upon that subject and had given
to the court large powers on that subject.
He had never known an action to be
amended until declaration was filed and
| never nfter jury was sworn. This was not
an amendment, 1t was Lew matter, there
| must be something to amend 70. There 10
nothing TO amend. The application IA to
| amend this Darr so as to introduce almost
absolute new matter He did not think the
| court could have made the ruling stated
by Mr. Fulton and this amendment
would be the entire introduction of
| new matter and It Is for no other purpose
| than TO put another count In that carr.
| There is nothing In 1t to show that they are
| authorized to do business In this State and
| they want to fix that, so as to assert that
| power. They have said section IA can have
no application, that no such defence
could be set up. There must be somewhere
| for the pleadings to stop. The courts have
fixed that limit or the pleading would be
interminable. These cases have bean run
ming five years and must be tried. have
seen cases thrown out of court again and
again on account of defective pleadings.
AT the conclusion OF Mr.. Nlelds' address.
Importance OF the ruling he would adjourn
the court then % p. ND and render his de-
cisfon In the morning.
The importance Of this suit to New Castle
county is more than at first supposed. Mr.
Nields has charge Of this suit and rs more,
la which citizens of New Castle county are
directly interested. The case rs being
managed with rare ability, every step made
bringinS forth interesting and able nrgu-
ments.
Dover, May Q The interest in the in
suranoe cases is, if anything, on tie in
crease. immediately after the assembling
on Saturday morning Judge Grubb de-
livered the courts opinion in the appli-,
cation TO amend The opinion was sub
stantiaily as follows; Yesterday friday
this court was constrained by the settled
rules and prize pies of the law of plead
ing, to refuse The plaintiff permission TO
put in evidence the State insurance ccm-
missioner's certificate, authorizing the in
surance company to transact insurance
business within this State. This was not
because the said company did not have
said certificate, but because il had not in
its declaration, alleged that it had
obtained said certificate, and become law
fully authorized to transact insurance
business within this State.
The court, therefore, Ind decided that
IL was not for want of such evidence but
for want of necessary form of statement
of its cause of action, in this respect
conformably TO the law of pleading that
1t could not put said certificate in evil
dence in this case.
The rules of pleading have been estab-
lished to secure the convenient and prac-
tioal administration of justice. And yet
in the course of time many reinements
and teehnicalities have been introduced
which tend to defeat, instead of secure
the trial of cause upon its merits.
In order to avoid these objections and
this effect, statutes have been passed to
enable party who has failed from one
cause or another to comply with some
strict technical rule Of pleading, to amend
his statement of his case and so avoid the
effect of such failure and secure trial of
his cause upon its real merits, and not
upon some mere technical or collateral
issue.
To avoid the contingencies Of its failure |
to allege that it had taken out the said |
insurance certificate and become author |
lied to transact insurance business in this |
State at the time it issued its policy TO |
Walton, Whann q Company and take their |
premium notes which are sueden in this |
action, it has asked the leave of this court |
to allow it to amend its declaration so as |
to allege this and thus become enabled to |
put said insurance certificate in evidence. |
Upon careful investigation and consid- |
GRAFTON of the subject and of the elab- |
orate aud able arguments upon this ques
ton, we feel that this court is war
ranted both by precedent and prin- |
ciple, in view of the history |
and policy OF our constitutional
and statutory provisions respecting
amendments of plepdings, &C., to grant |
the leave to amend which has been asked |
for by the plaintiff. The effect of the |
supposed amendments is not likely to |
take the defendants by surprise or put |
them at any disadvantage requiring the |
continuance or postponement of the case, |
nor do we feel that costs or any terms |
should be imposed upon the plaintiffs. |
Mr.. Mccormick then offered, and it was |
admitted, the certificate of John r. McFee |
dated November 28th, 1879, and giving |
the company the right to do business /
until january 3lst, 1880.
The three applications for insurance |
by the Walton, Whann d Go. with the |
three premium notes accompanying them |
were offered 10 evidence, and the counsel |
for the plaintiff asked II the opposite side |
would admit the signature of Walton,
Whann q 90. This was done, but Mr.. |
Massey objected to the admission of the |
application and notes. They all being |
prior to the granting of the insurance |
commissioners certificate. He said the |
counsel has presented three separate in |
struments, and asks us to admit that the |
signature of Walton Whann 4 Company
is correct, and they admit the signature of |
l.. 2. Buck & 90. In admitting this we |
protest against being understood as ad- |
mitting the papers in evidence.
Mr.. Nields. Admit the writing rs if it
was of the same force and effect as if
proven.
Mr.. Massey said he promptly objected
to the admission of the papers. He said,
in view OF the argument made, which was
hsard yesterday friday, this is neces-
sarily shortened. The counsel had said
that they must comply with the State
law, and, thereby admitting in the ab-
sence of that authority, there was no law
full authority by which they could do
business. It was objected that there
was no sufficient averment In the declara-
tion, and your honors decided that they
were compelled to aver that they were
allowed to do business within the limits of
the State, and the counsel moved to
amend, and that was granted and under
that the certificate has been introduced in
evidence to show the compahy's right to
transact business within this State. Observe
that there appears to have been two If not
three transactions in relation to the bust
ness of fire insurance and subsequent 10
the date of the insurance commissioners
certificate the 2Sth day of November, A.
D. 1879, and these applications and notes
are alss all after the first day of July,
1879, when the act took effect and prior
to the issuance of the certificate. Their
right to do business commenced
on the 2Sth day of November
and they were not authorized by
their agents to do business between
the above dates. Mr.. Massey gave the
necessary requirements OF the law aud
oontended that they had not complied
with the law. Their notes are evidences
of insurance transacted by law, and this
corporation is foreign to this common
wealth. These are Delaware contracts,
and they give priInR facie evidence of in.
surance business to be transacted in this
State and they are wholly in this State.
That company had no right 10 do any
business and their only legal authority
was the insurance commissioners certifi-
cate.
Mr.. Massey laid down as principle of
law. Every act of a corporation made
outside of its domicile depends for its
validity upon the law of the state n
which the power is undertaken to be ex-
arnioad axpraa5ad opd stnnlsad a,d 1. nos